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Indelicate imbalance

Context:Recently, The Supreme Court sent the question of restoring 4G connectivity in Jammu and Kashmir for a review to the very authorities who imposed the restriction.

More on the news:

Earlier the 3-judge bench concluded that the grievance of the petitioners merits consideration.

In the present case, it has asked two Secretaries in the Union government and the J&K Chief Secretary to consider the case made out by the petitioners for restoring 4G services.

The judgment is in consonance with a judicial trend that seeks ‘balance’ between rights and ‘national security’.

The Court acknowledges that it might be better and convenient to have better Internet facilities during a global pandemic and a national lockdown.

It also noted that the entire Union Territory has been put under curbs that allow only 2G speed.

However, it takes into account two claims by the government: one, that there ought to be limits on data speed to prevent terrorists misusing it to disturb peace and tranquillity; and two, that there has been a spike in incidents of terrorism — 108 incidents, in fact, between August 5, 2019 and April 25, 2020 — in the area.

Criticism of the move:

The Court has not even pursued the attempt it made in Anuradha Bhasin, to lay down a set of rules by which authorities seeking to impose restrictions on fundamental rights must adhere to the doctrine of proportionality.

Clear abdication of responsibility: SC has sent it to the very authorities who imposed the restriction.

The court failed to ask how handwara-like incidents could be linked to Internet speed when all of them took place while severe restrictions were in place.

The mandate that the Court enjoys under Article 32 of the Constitution — to enforce fundamental rights — cannot be transferred to the executive.

A judicial standard should be there to scrutinise claims made in the name of national security.

Anuradha bhasin Case

The Court declared that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of Internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g) respectively.

Maintain the balance: While such freedom is not absolute, the restrictions imposed on it should be in consonance with the mandate under Article 19(2) and Article 19(6) of the Constitution, inclusive of the test of proportionality, the bench ruled.

The bench however did not quash the government orders leading to suspension and shutting down of the Internet.

The court ordered the government to constitute a review committee to review such orders once in every seven working days as suspension of such services can be resorted to only for a temporary duration.

The bench held: Orders not in accordance with the law laid down above must be revoked. Further the court gave direction to follow thereafter.

The court also ruled power under Section 144 of the CrPC, being remedial as well as preventive, is exercisable not only where there exists present danger but also when there is an apprehension of danger.

However, the bench qualified it by saying that the “danger” contemplated here should be in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.

An order under Section 144, the bench held, should state the material facts to enable judicial review of the same.

Section 144 of CrPC

Section 144 of the CrPC deals with the power to issue an order in urgent cases of nuisance or apprehended danger in order to prevent assembly of persons at a particular place or area to preserve public tranquillity.

Doctrine of Proportionality

A key contribution of the judgment is in expounding the doctrine of proportionality.

While exercising the power under Section 144, the Magistrate is duty bound to balance the rights and restrictions based on the principle of proportionality and thereafter apply the least intrusive measure.

Repetitive orders under Section 144 would be an abuse of power.

Borrowed from: Lord Diplock’s aphorism, “You must not use a steam hammer to crack a nut, if a nutcracker would do”

Article 32

Article 32 of the Indian Constitution gives the right to individuals to move to the Supreme Court to seek justice when they feel that their right has been ‘unduly deprived’.

The apex court is given the authority to issue directions or orders for the execution of any of the rights bestowed by the constitution as it is considered ‘the protector and guarantor of Fundamental Rights’.

Under Article 32, the parliament can also entrust any other court to exercise the power of the Supreme Court, provided that it is within its Jurisdiction. And unless there is some Constitutional amendment, the rights guaranteed by this Article cannot be suspended.

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